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On appeal, Long claimed the district court erred by overruling his objection to his criminal history. Because Long was ordered to serve jail time for contempt, based on his failure to pay fines and court costs, Long asserted his uncounseled misdemeanor convictions resulted in incarceration and should not have been included in his criminal history. Long also claimed his constitutional rights were violated because his criminal history was not proven to a jury beyond a reasonable doubt.

After reviewing the case law regarding this issue, the COA determined that the municipal convictions violated the Right to Counsel, regardless of whether Mr. Long served any time for contempt:

Returning to our facts, Long's municipal court sentences for his battery convictions are somewhat difficult to understand. Long was fined for each of his convictions, and the fines were suspended or reduced provided that payments were made in a timely manner. The municipal court did not impose a jail sentence upon Long for any of his convictions. However, Long's sentence in each case referred to a 1-year probation, which was more akin to a suspended sentence since the court never imposed jail time. It is undisputed that the State failed to establish that Long's municipal court convictions were counseled or that there was a waiver of counsel at the time his guilt was determined.

. . . .

Long received probation as well, but the district court never specified the underlying jail term. However, this distinction is insignificant. [State v. Youngblood, 288 Kan. 659, 206 P.3d 518 (2009) (blogged about here)] makes it clear that a person accused of a misdemeanor has a Sixth Amendment right to counsel at the stage of the proceedings where guilt is adjudicated if the sentence to be imposed upon conviction includes a term of imprisonment, even if the jail time is suspended or conditioned upon a term of probation. Had Long received only a fine without any term of probation, his misdemeanor convictions would not have triggered his constitutional right to counsel. But because Long was placed on probation in each misdemeanor case, he was entitled to counsel at the stage of the proceedings where his guilt was adjudicated, even though his incarceration was not immediate or inevitable.

In summary, because Long was sentenced to probation in No. 95 MCR 1386 and No. 96 MCR 0061 without counsel or having waived counsel at the time his guilt was adjudicated, his misdemeanor battery convictions were obtained in violation of his Sixth Amendment right to counsel and should not have been scored in his criminal history. We do not need to address whether Long's uncounseled misdemeanor convictions resulted in incarceration when he was subsequently ordered to serve jail time for contempt of court.

Combined with a recent case about sufficiency of proof of waiver of the Right to Counsel (blogged about here) practitioners should be very careful to review municipal convictions that make a difference in criminal history.

[Update: the state did not file a PR and the mandate issued on April 1, 2010.]